Jethabhai Mulubhai Vadher vs Range Forest Officer
2021 Latest Caselaw 3758 Guj

         C/LPA/1772/2019                                          ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 1772 of 2019
        In R/SPECIAL CIVIL APPLICATION NO. 17152 of 2017
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                 JETHABHAI MULUBHAI VADHER
                             Versus
                    RANGE FOREST OFFICER
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Appearance:
MR TR MISHRA(483) for the Appellant(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                            Date : 04/03/2021

                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

The present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against judgment and order dated 01st July, 2019 passed by learned Single Judge whereby the Special Civil Application came to be dismissed.

2. In the writ petition the appellant- petitioner workman had challenged judgment and award passed by Labour Court, Jamnagar dated 17th July, 2017 in Reference Case No.42 of 2015, whereby the said Reference of the workman came to be rejected. The workman wanted relief of reinstatement with back wages from the Labour Court.

3. The case of the appellant-petitioner inter alia was that he was appointed as Chokidar/Peon with effect from 01st April, 1997 under the respondent-

          C/LPA/1772/2019                                              ORDER



Range    Forest        Officer,          Jamnagar.         According          to      the

petitioner, he had completed continuous service upto 30th November, 2005, when his services came to be illegally terminated by the respondent. The petitioner raised industrial dispute resulted into Reference (LCJ) No.42 of 2015 which was rejected by the Labour Court by aforementioned judgment and award. The petition was also dismissed, whereafter the present Letters Patent Appeal came to be filed.

3.1 It is on the two grounds that the Labour Court has rejected the Reference of the petitioner workman refusing him to grant the relief. First is that the Reference was sought belatedly after long period of 10 years. Secondly, on merits, it was held that petitioner could not establish the factum of completion of continuous service of 240 days during the preceding 12 months.

4. Heard learned advocate Mr.T.R. Mishra for the petitioner and learned Assistant Government Pleader Mr.Hardik Mehta for the respondent.

5. In Prabhakar v. Joint Director, Sericulture Department [(2015)15 SCC 1] which decision was referred to and relied on by learned Single Judge, the Supreme Court analyzed the provision of Section 10 of the Industrial Disputes Act and observed that there should exist a live industrial dispute and that the claim which has become stale, should not be entertained under Section 10 of the Act. It was observed that when the termination was challenged

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belatedly and the dispute was raised after gross delay or latches which remained unexplained, it would be presumed that the workman has waived his right or acquiesced into the act of termination. It was observed by Apex Court that such dispute cannot be treated as existing dispute and the appropriate Government could refuse to make Reference.

5.1 The Supreme Court in Prabhakar (supra) concluded to hold as under,

"To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry." (Para 44)

5.2 In the present case, admittedly, as per the case of the appellant-petitioner, his services came were terminated on 30th November, 2005 and the Reference was sought before the labour authorities on 04th April, 2015 which was nearly after 10 years. 10 years is a gross delay by itself. Not only that, the petitioner-workman has not furnished any satisfactory explanation for this delay. The ground of the workman approaching belatedly before the Labour Court rightly

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weighed with the learned Single Judge to uphold the rejection of Reference.

5.3 It is trite principle that eventhough under the Industrial Disputes Act, 1947 the period of limitation has not been prescribed, the workman has to approach the Labour Court or industrial forum within reasonable time. Delay of 10 years as happened in the present case would be fatal. While the stale litigation is not to be encouraged, dead disputes under the industrial law could also not be entertained in absence of satisfactory and acceptable explanation. The industrial dispute which may require adjudication, must be an existent dispute and a live dispute. The dead dispute could not be gone into after long passage of 10 years.

5.4 Not only the above aspect stands decisive to justify rejection of Reference by Labour Court and dismissal of petition by learned Single Judge, even on factual merits, appellant-workman could not establish his case. The Labour Court in its judgment and award observed that the employer had produced statement of service details of the workman along with reply at Exh.7 in which the date of entry, nature of work, period during which the service was rendered, the presence, amount paid and the vouchers thereof etc. were indicated. The Labour Court, on the basis of the said relevant material, recorded finding that the workman had not completed continuous service of 240 days during the span of the year 1997 to 2005.

          C/LPA/1772/2019                                               ORDER



5.5          The workman could not show that the said

statement produced by the employer was not reflecting the correct facts or that it was a false statement. Except the bald statement in the statement of claim about completion of 240 days of service, the workman did not have any cogent material. Learned Single Judge duly referred to the decision of the Apex Court in Krishna Bhagya Jala Nigam Limited v. Mohammed Rafi [(2019) 11 SCC 522] to highlight the principle of law that burden of proof to establish completion of 240 days of service in a year lies on the workman.

5.6 The workman has to initially establish such asserted fact whereafter onus may shift on the employer. However in the present case, the workman failed to discharge his initial burden, on the contrary, employer could show from the service details of the workman that continuous service of 240 days was not rendered.

5.7 The above findings recorded by the Labour Court were examined by learned Single Judge to find them to have been validly recorded.

6. Learned Single Judge was eminently justified in observing that re-appreciation of evidence recorded by the Labour Court was not the realm of the writ jurisdiction and that in the facts of the case, powers under Article 227 of the Constitution were not required to be exercised.

6.1          This           Court        exercising           Letters           Patent
jurisdiction         finds         no    ground        which    would         warrant





          C/LPA/1772/2019                                   ORDER

interference in the order of learned Single Judge which, on the valid considerations and grounds, upheld the judgment and award of the Labour Court rejecting the Reference of the petitioner-workman to dismiss the petition.

7. The challenge in this Letters Patent Appeal is meritless. The Appeal is dismissed.

(N.V.ANJARIA, J)

(A. C. RAO, J) ANUP